Article 50 and Brexit: What to Know About EU's Divorce Clause
British Prime Minister Theresa May signs a letter of notification to the president of the European Council setting out the United Kingdom's intention to withdraw from the European Union on March 28, 2017.EPA
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BRUSSELS — Europe's most ardent federalists, including the man now pulling the strings in the European Commission, tried to kill off the European Union's exit clause or make it unworkable when it was first proposed in 2003.
Now Britain, having voted to quit the EU in a landmark referendum, is trying for tactical reasons to avoid triggering that very procedure, crafted by a veteran British diplomat, that leads to automatic withdrawal after two years.
The history of the exit clause that became Article 50 of the 2009 Treaty of Lisbon is full of such ironies.
Drafted by John Kerr, a former British ambassador to the EU who was secretary-general of a Convention on the Future of Europe, it was proposed by former French President Valery Giscard d'Estaing, who chaired the conclave that drew up a proposed Constitution for Europe.
Giscard told the Italian newspaper Corriere della Sera this week he had wanted to remove "the fear, above all Anglo-Saxon, that the European Union was a sort of prison that you could never leave once you had entered it."
Kerr, now a member of Britain's House of Lords, told Reuters the aim had also been to counter media propaganda depicting Britain as trapped on a conveyor belt to a European superstate.
"We wanted to defuse the canard that you are tied to the EU, with no way out, proceeding to an unknown destination," he said.
In reality, a country could have left even before the legal option was incorporated into the treaty, he said, but the clause created an orderly process for the first time.
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"If you had stopped paying and attending, they'd notice you were gone," said Kerr. But Giscard was "mindful of the history of the secession and the Civil War in the United States" and sought to create a peaceful way out.
"The Commission and the European Parliament didn't like it because they thought it was sovereignist and if Jean Monnet (the French founding father of European integration) hadn't thought it necessary, why add it now?" Kerr said.
That opposition prompted federalists led by Elmar Brok, a German conservative who headed the EU legislature's delegation in the Convention, to try to block the clause, then add language limiting the transition period to a maximum two years.
"I was against it," Brok told Reuters. "If a member state wanted to leave the EU, there were other ways. It didn't require a special article.
"But since Giscard and others wanted it, we incorporated it in a trade-off for more rights for the European Parliament," the veteran lawmaker said, illustrating the kind of horse-trading that is the way the EU does business.
Brok noted that Article 50 was anyway just a divorce law that did not cover future cooperation, which he said could only be negotiated once the former member was outside the door. That is precisely what Britain's Leave campaigners want to avoid.
He was not alone in opposing the exit clause. German and Dutch government representatives spoke against it in the 105-member Convention, arguing it would only encourage secession.
"This clause should be struck out," then German Foreign Minister Joschka Fischer told the Convention. "So far there has been no need for an exit provision for the Union."
The two-year restriction was added by Martin Selmayr, then a legal adviser to the parliamentary legal affairs committee and now chief-of-staff to European Commission President Jean-Claude Juncker and widely seen as the most powerful man in Brussels.
The time limit creates a big problem for a country such as Britain wishing to negotiate advantageous exit terms, since once notice has been given the process can only be halted or extended by unanimous agreement, giving any member state a veto.
That is why London is holding back from notifying its intention to withdraw, which it cannot be forced to do, and why EU partners are pressing it to hand in its notice.
"Would you advise (the British) to send a letter that triggers automatism and puts all the pressure on them? From the moment you push the button you are in a stupid negotiating scenario," a senior EU official involved in the process said.
"I personally think they will never notify. They have the cleverest civil servants on the planet," the official said.
When a House of Lords select committee published a report on the draft EU constitution in October 2003, its members showed great foresight about the current situation.
The section on the exit clause concludes laconically: "We doubt that the reality of any attempt to withdraw would be as simple as the draft implies."